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Judgment
This criminal revision has been filed under Section 397/401 of the Code of Criminal Procedure against the order dated 23.08.2003 passed by learned
Judicial Magistrate First Class, Sihora, Jabalpur in criminal case No. 290/99 whereby learned JMFC framed charge against the applicants / accused
for the offence punishable under Sections 485, 486, 487, 488 read with Section 34 of IPC.
Brief facts of the case which are relevant for the disposal of this criminal revision are that Sharad Kumar Patel (who has died during the pendency
of this revision), non-applicant No.3 Bhupendra Kumar and non-applicant No.4 Azad Kumar Basant Lal lodged a complaint at police station
Majhgawan, Tehsil Sihora averring that they are the partners of firm M/s Radhakishan Narayandas and the firm is engaged in the manufacturing and
marketing of Bidis under the trademark “Khargoshâ€. The said trademark is registered under the Trade And Merchandise Marks Act, 1958 and
bears registration No. 112689. The wrapper in which Bidis are packed is also registered and bears registration No. 164797. The Bidis that are made
by the firm are mainly sent for sale in Uttar Pradesh and the firm has Bidi making units in village Majhgawan, Indrana, Ghughra and Katangi in
Jabalpur District. It is further averred that in the past Chandrika Prasad Patel and Govind Singh, used to work in Majhgawan unit of the firm.
Complainants/ respondents expelled them and ten months ago they also expelled applicants Jayantilal Patel and Ramchandra Patel from the
partnership of the firm M/s. Radhakishan Narayandas. Thereafter they had no relation with the firm and the trademark of the firm. It is further
averred that the information was received that applicants Jayantilal Patel, Ramchandra Patel, Chandrika Prasad Patel and Govind Singh are selling the
Bidis by using the firm's name and trademark and are earning illegal profits and also causing loss to the firm, so action be taken against them. On that
police inquired about the matter and during the enquiry, police raided the premises located at village Gidurha and seized packets of “Khargoshâ€
brand Bidis and packaging material and found that applicants are illegally doing business of making and selling Bidis in the name of “Khargoshâ€
brand. On that police filed the complaint before the JMFC Sihora against the applicants. On the basis of that complaint Criminal Case No. 290/1999
was registered and learned JMFC, Sihora vide order dated 23.08.2003 framed charge against the applicants for the offence punishable under Sections
485, 486, 487, 488 read with Section 34 of IPC. Being aggrieved from that order applicants filed this criminal revision.
Learned counsel for the applicants submitted that earlier applicants Jayantilal and Ramchandra were also the partners of the firm M/s Radhakishan
Narayandas. Complainant wrongly expelled them from the partnership. Applicants Jayantilal and Ramchandra had filed a Civil Suit No. 18A/2006
against that resolution. That Suit was decreed by VIII ADJ, Jabalpur vide judgment and decree dated 22.10.2008 and declared the resolution void. It
was also declared that applicants Jayantilal and Ramchandra are the partners of the firm M/s Radhakrishna Narayandas and are entitled to act as
partners of the firm along with the respondent. So no offence under Sections 485, 486, 487, 488 read with Section 34 of IPC is made out against the
applicants. Learned trial court without appreciating this fact wrongly framed charges against the applicants. So, applicants be discharged from the
aforesaid charges.
Learned counsel for the State opposed the prayer and submitted that the implication of the judgment passed by learned Additional District Judge,
Jabalpur is to be considered by the trial court after recording the evidence. At this stage, only on the basis of that judgment charges framed by the trial
court against applicants cannot be quashed. There is sufficient evidence available on record to frame charges against applicants. So the learned trial
court did not commit any mistake in framing charges against applicants for the offences punishable under Sections 485, 486, 487, 488 read with
Section 34 of IPC so, the petition be dismissed.
This Court has gone through the record and arguments advanced by the learned counsel for the parties. Hon'ble Apex Court in the judgment passed
in Hem Chand Vs. St. of Jharkhand reported in (2008) 5 SCC 113 has held that at the stage of framing of charge, Court exercises a limited
jurisdiction. It has to see whether a prima facie case has been made out or not, concerned of the Court should be to see whether the case of probable
conviction for commission of an offence has been made out on the basis of the materials found during the investigation. It would ordinarily not
consider whether accused would be able to establish his defence if any. In Bharat Parikh Vs. Central Bureau of Investigation and another, (2008) 10
SCC 109 also held while framing charge the trial Court can only look into the materials produced by the prosecution while giving an opportunity to the
accused to show that the said materials were insufficient for the purpose of framing charge. At the stage of framing of charge, the submissions on
behalf of the accused have to be confined to the material produced by the investigating agency. In Soma Chakravarty Vs. State through CBI, (2007) 5
SCC 403 held at the stage of framing of charge-Material brought on record has to be accepted as true. In State Of Orissa Vs. Debendra Nath Padhi,
AIR 2003 SC 1512 Hon'ble Apex Court considered the matter in detail and held that at the stage of framing of charge the defence of the accused
cannot be considered. In the matter of Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another, (2013) 11 SCC 476, Their
Lordships of the Supreme Court, while reiterating the law laid down in Debendra Nath Padhi's case (supra), have clearly held that at the time of
framing charge, the accused is entitled to urge his contentions only on materials submitted by the prosecution, he is not entitled to produce any material
at this stage and the Court is not required to consider any such material if submitted.
This shows that at the time of framing of a charge, what the trial court is required to, and can, consider only the police report referred to under
Section 173 Cr.P.C. and the documents sent with it. For framing of charge strong suspicion about the commission of the offence and accused's
involvement of offence is sufficient. On merits, materials/ documents filed by accused cannot be considered. The material produced by prosecution
alone is to be considered. Roving inquiry and mini-trial are not permissible. Defence of the accused is not relevant. The only right the accused has at
that stage is of being heard and nothing beyond that. Accused is competent to make his submissions only on the material supplied by the prosecution.
If we examine the instant case, in the light of the above pronouncement of the Apex Court, the main contention of the learned counsel of the
applicants is that earlier applicants Jayantilal and Ramchandra were also the partner of the firm M/s Radhakishan Narayandas. Complainant wrongly
expelled them from the partnership. Against that resolution of the firm, Jayantilal and Ramchandra had filed a Civil Suit No. 18A/2006, which was
decreed by VIII ADJ, Jabalpur vide judgment and decree dated 22.10.2008. In that judgment, the court declared that resolution void and it was also
declared that applicants Jayantilal and Ramchandra are the partners of the firm M/s Radhakrishna Narayandas and are entitled to act as partners of
the firm along with the respondents. So applicants are entitled to manufacture and sale the Bidis under the trademark “Khargoshâ€. But that
contention of the learned counsel of the applicant does not appear to be correct. From the perusal of the judgment passed by the VIII ADJ, Jabalpur,
a copy of which has been filed by the applicant, it appears that in that case learned trial court framed the issue No. 4 “ Whether the applicants are
entitled to use the trademark “Khargosh†? and after discussing the evidence produced by the parties regarding that issue, the trial court held that
the trademark “Khargosh†was registered in the name of firm M/s. Radhakrishna Narayandas. As the applicants were expelled from the firm on
24/12/1998, therefore as per Section 24 the Trade And Merchandise Marks Act, 1958, during the period of expulsion, the applicants were not entitled
to use the trademark “Khargoshâ€. It also appears from the record that Sharad Kumar Patel, non-applicant No.3 Bhupendra Kumar and non-
applicant No.4 Azad Kumar Basant Lal had filed Civil Suit No. 1A/2000, before District Judge Jabalpur. In that Civil Suit also vide order dated
05/02/2000 District Judge prohibited the applicants Jayanti Lal Patel and Ramchandra from selling, marketing and distributing Bidis Under the
trademark ‘Khargosh’. Against that order applicants filed Miscellaneous Appeal No. 23/2000, which was also dismissed by the Coordinate
Bench of this court vide order dated 18/10/2000 and held that “the applicants (Defendants of that case) cannot claim exclusive right to the
trademark of Khargosh Chhap of the firm. They are the expelled partners. The trademark is not their exclusive property. They may have the right to
the assets and the profit of the firm but they have no exclusive right to trademark or do business on the foundation of the Goodwill of the firm
represented by its trademark.†So on the basis of the judgment passed by the VIII ADJ, Jabalpur it cannot be said that during the period of expulsion
applicants had the right to use the trademark “Khargoshâ€. In these circumstances, whether at the time of incident applicant Jayantilal and
Ramchandra were the partners of the firm and had a right to run a parallel manufacturing unit in the name of the firm M/s Radhakrishna Narayandas
and entitled to use trademark “Khargosh†is a matter of fact, which would require evidence to decide. So it cannot be considered at this stage.
In the complaint it is clearly mentioned that the complainants are the partners of firm M/s Radhakishan Narayandas and that firm is engaged in the
manufacturing and marketing of Bidis under the trademark “Khargoshâ€. The said trademark is registered under the Trade And Merchandise
Marks Act, 1958 and bears registration No. 112689. The wrapper in which Bidis are packed is also registered and bears registration No. 164797. The
Bidis that are made by the firm are mainly sent for sale in Uttar Pradesh and the firm has a Bidi making units in village Majhgawan, Indrana, Ghughra
and Katangi in Jabalpur District. It is further averred that ten months ago they had expelled applicants Jayantilal Patel and Ramchandra Patel from the
partnership of the firm M/s. Radhakishan Narayandas, thereafter they had no relation with the firm and the trademark of the firm. Information was
received that applicants Jayantilal Patel, Ramchandra Patel, Chandrika Prasad Patel and Govind Singh are selling the Bidis by using the firm's name
and trademark and are gaining illegal profit and also causing loss to the firm. On that police inquired about the matter and during enquiry police raided
the premises located at village Gidurha and seized packets and packaging material of Khargosh brand Bidis and found that applicants are illegally
doing business of making and selling Bidis in the name of Khargosh brand. So prima facie offence under 485, 486, 487 and 488 of IPC are made out
against the applicants. In these circumstances, there is no need to interfere in the impugned order of the trial court.
Hence the criminal revision is dismissed with the liberty to the applicants to raise all their objections before the trial Court at the appropriate stage
which shall be decided by the learned trial Court according to law at an appropriate stage without being influenced by the impugned order or
observation made by this Court in this revision.